Monday October 3rd, Senator Kerry (D-MA) chaired a raucous Senate Subcommittee Field Hearing in a packed Massachusetts State House. The high profile hearing focused on NOAA’s (National Oceanic and Atmospheric Administration) controversial catch share program, embattled NOAA Administrator Dr Jane Lubchenco, and NOAA’s troubled Office of Law Enforcement. Participating lawmakers included Senator Mark Begich (D-AK), Senator Scott Brown (R-MA), Congressman Barney Frank (D-MA), Congressman John Tierney (D-MA), Congressman Bill Keating (D-MA), and Massachusetts State Senate President, Therese Murray.

Senator Scott Brown rekindled the subject of malfeasance in the Office of Law Enforcement (OLE), “At the last hearing, I asked what does it take to get fired at NOAA?”

Dr Jane Lubchenco, NOAA Administrator,  testified that NOAA cannot discuss personnel matters due to federal regulations governing the treatment and privacy of federal employees. Eric Schwaab, the NMFS (National Marine Fisheries Service) Administrator, cited similar rules and regulations in Monday’s hearing as well as Senator Scott Brown’s June 20th Faneuil Hall Senate Subcommittee Field Hearing. Both Schwaab and Dr Lubchenco also imply that the reason that no one has been fired (or apparently received much, if any disciplinary action) stems from federal laws enacted by our legislature to protect federal employees. Dr Lubchenco did not offer input on which laws the legislature should change so that the public could fully learn the extent of misconduct in the OLE and so that OLE members could be terminated for misconduct.

After a series of meandering evasions by Dr Lubchenco, Congressman Barney Frank snapped, “Why can’t you give me a straight answer. Just give a straight answer. It could be yes. It could be no. You don’t have to hire someone to take the SAT for you.”

Frank continued, “Most agencies are at least somewhat advocates of the industry they regulate… I can think of only two that hold their industry guilty until proven innocent- the DEA (Drug Enforcement Agency) and NMFS (National Marine Fisheries Service).”

When pressed for more specific redresses, Lubchenco offered, “We will commit to clarifying what we can and cannot do.” Which elicited, “Well… that’s real helpful,” from Congressmen Tierney. Congressmen Tierney continued, “Will you commit to expediting the return of legal fees?” Dr Lubchenco answered, “I will commit to looking into that.”

Senator Kerry crafted a more inclusive approach, asking for Dr Lubchenco to treat the most harmed fishing areas as disaster zones. Lubchenco indicated a willingness provided the regional fishing councils would provide her the data which she noted had not been done.  Senator Kerry then initiated a plan to convene a private meeting with Dr Jane Lubchenco, NMFS officials, concerned legislators, and fishing industry stake holders in a closed session presumably to flesh out steps forward and to air grievances.  Kerry was able to elicit Dr Lubchenco’s acceptance of an invitation. However, Kerry warned, “This clearly threatens the future of small boat fishing in Massachusetts, which has been a way of life for generations of our families. I want you to know that their way of life will not end on my watch.”

It remains to be seen if this will result in any progress beyond catharsis. When Congressman Keating asked Lubchenco, “Would you support a law that would allow more flexibility rather than rely on the most recent study?” Lubchenco answered, “No.”

Lubchenco pleaded with the fishing industry and legislators to “trust the process.” Given the history between small commercial fisherman and the overtly threatening tactics and disputed science, that seemed unlikely. Senator Brown noted, “there is a complete lack of trust from fishing groups.”

The much referenced report from the Inspector General made special note of the adversarial approach employed by NOAA’s OLE:

“The Office of Law Enforcement considers it appropriate to operate from a criminal-investigative standpoint and apply techniques typically used in criminal investigations to regulatory enforcement matters.”

At Monday’s hearing, Schwaab repeated his understanding of the Magnuson-Stevenson mandate but noted that when international fishing was involved, NOAA attempts to be more flexible to not hurt “the American fishing industry.”

Congressman Bill Keating jumped in, “When you deal with international issues: you are flexible, but when it is domestic, they (small commercial  fishermen) deal with bureaucracy. Where is your flexibility for small business?”

The hearing came directly after Massachusetts Attorney General, Martha Coakley, called on the U.S. Department of Commerce, NOAA, and the NMFS to release documents related to overzealous and predatory tactics practiced by NOAA’s OLE. When AG Coakley’s request was raised in the hearing, Eric Schwaab said that it would be looked into and responded to accordingly. Dr Lubchenco did not seem to be aware that the Attorney General was requesting such documents.

The hearing was divided into two panels. The first panel focused on Dr Lubchenco. The second panel represented a cross section of concerned parties in the New England fishing industry: Steven Welch (fisherman and Northeast Seafood Coalition board member), Paul Diodati (Director of Massachusetts Division of Marine Fisheries), Dr Brian J Rothschild (Montgomery Charter Professor, Department of Fisheries Oceanography School for Marine Science & Technology, University of Massachusetts Dartmouth), Colin McAllister “Rip” Cunningham Jr (Chair, New England Fisheries Management Council), and Dr Steve Cadrin (Associate Professor, Department of Fisheries Oceanography School for Marine Science & Technology, University of Massachusetts Dartmouth). Each member of the second panel was provided three minutes to speak extemporaneously and have their prepared statements entered into Senate testimony.

Dr Lubchenco was asked to stay for the second panel. Dr Lubchenco cited another engagement, but did stay for part of the second panel.

Senator Kerry asked, “Why won’t this work and if not what will make it work?”

Highlights from the second panel included fisherman Steven Welch wondering how it was that former director of NOAA’s OLE, Dale Jones Jr, still had a job with NOAA after shredding some 75% of the documents relevant to an ongoing Inspector General report. Welch noted that he had begun conservation efforts absent of NOAA catch shares, “we started 15 years ago and sacrificed and I supported because it would help and it did help.” He then explained what the current share program was doing to him, “it’s cheaper for me to stay home on my couch and lay off 6 people and lease out by catch shares. It’s an injustice to America.” Welch is also a victim of a $13,000 forfeiture fine for straying into a no-fishing area in a boat that wasn’t equipped to fish while his crew was asleep; incidentally, NOAA used a satellite to accuse Welch of this violation (Welch claims NOAA’s coordinates were wrong, and that his defense was steamrolled by NOAA’s disregard for any semblance of due process).

Dr Brian J Rothschild noted that shortfalls in the catch share program costs the economy some $400,000,000 and some 1,000 jobs. He also noted that more liquidity in the program could allow for some 140 tons of additional catches without breaking any regulations.

Paul Diodati’s testimony provided compelling evidence concerning the concentration of catches into the larger commercial operators.

Dr Steven Cadrin’s testimony documented the expense, inadequate frequency, and inadequate quality of the stock assessments.

Senator Kerry summarized, “If you want to restore trust, the biggest thing is the science, and the lack of faith in the science.”